Holding

The principle of equal pay for equal work cannot be enforced where there is no discrimination within the same employer; therefore the petitioners cannot claim the wages of government carpenters or the Deputy Commissioner’s minimum‑wage rates.

Summary

The petitioners, daily‑rated carpenters employed by the Himachal Pradesh State Handicrafts Corporation, filed a writ petition under Article 32 seeking "equal pay for equal work" with regular government carpenters or, alternatively, the minimum wages fixed by the Deputy Commissioner. The respondents argued that the corporation is a private company registered under the Companies Act, that the workers are industrial employees covered by the Factories Act and other labour statutes, and that the Deputy Commissioner’s wage order applies only to government employees. The Supreme Court held that the principle of equal pay for equal work can be invoked only where discrimination exists within the same establishment and employer; a comparison with employees of a different establishment, even if owned by the same master, is not permissible. The Court further observed that the jobs are not automatically comparable and that the Deputy Commissioner’s order does not extend to corporation workers. Consequently, the petition was dismissed. The Court made no order on costs or on the petitioners' claim for regularisation, leaving that to be pursued under the applicable law.

Issues considered

Whether the principle of "equal pay for equal work" under Article 39(d) and Article 14 can be enforced by workers of a private corporation against government employees.
Whether a comparison of wages with counterparts in a different establishment or under a different employer is permissible.
Whether the Deputy Commissioner’s minimum‑wage order under the Himachal Pradesh Financial Rules applies to employees of the corporation.
Whether the petitioners are entitled to regularisation of service and associated benefits.

Legislation cited

Companies Act, 1956
Constitution of Indias. Article 14, s. Article 16, s. Article 32, s. Article 39(d)
Factories Act, 1948
Himachal Pradesh Financial Ruless. Order dated March 20, 1986

Subjects

equal pay for equal workArticle 39(d)Directive PrinciplesArticle 14discriminationminimum wagesprivate corporationlabour lawFactories Actwage parityregularisation

Judgment

HARBANS LAL & ORS.
A
v. ~

,.,.
STATE OF HIMACHAL PRADESH & ORS.

AUGUST I, 1989

B [K. JAGANNATHA SHETTY AND A.M. AHMADI, JJ.)

Constitution of India, 1950: Articles 32, 39(d)-Equal pay for
equal work-Carpenters in Wood Working Centre, Himachal Pradesh
State Handicrafts Corporation-Whether entitled to claim wages pay-
able to their counterparts in regular service.

c The .petitioners employed as daily rated carpenters at the Wood ~
Working Centre of the Himachal Pradesh State Handicrafts Corpora-
lion sought enforcement of their fundamental right to have "equal pay ·-+
for equal work" in terms paid to their counterparts in regular services,
or in the alternative, the minimum wages prescribed by the Deputy
D Commissioner for like categories of workmen.
The petitioners' claim was resisted by the respondents. Their case
was that the unit where the petitioners were working was a factory
registered under the Factotjes Act, that they were treated as industrial
workmen and given all benefits due to them under the various labour
legislations, that the Government had not fixed the minimum wages
,K.
E
payable to the workmen engaged in the Corporation or other like
industries but the Corporation had adopted for its workmen the
minimum wages payable for similar work in the construction industry,
and that there were no regular employees of the petitioners' categories
in its establishment and, as such, the question of payment to them the
pay admissible to regular employees does not arise.
F
Dismissing the writ petition,
~

HELD: I. Unless it is shown that there is a discrimination
amongst the same set of employees by the same master in the same
establishment, the principle of "equal pay for equal work" cannot he
G
enforced. A comparison cannot be made with counterparts in other
establishments with different management, or even in establishments in
different geographical locatiom though owned by the same master. [668B l x
In the instant case, the petitioners were employed by a company
H
incorporated under the Companies Act. They cannot claim wages pay-
...
662

••
HARBANS LAL v. STATE OF H.P. 663

able to their counterparts In government service. [6'8C]
A
Meva Ram Kanojia v. All India Institute of Medical Sciences &
Anr., [1989] 1SCC235, referred to.

Randhir Singh v. Union of India, [1982] I SCC 618, explained.
B
2. The principle of 'equal pay for equal work' has no mechanical·
application in every case of similar work. No two jobs by the mere
nomenclature or by the volume of work performed can be rated as
'1..cequal. It is not just a comparison of physical activity. It requires the
• . consideration of various dimensions of the job. The accuracy required
by the job and the dexterity it entails may differ from job to job. It C
cannot be evaluated by the mere averments in the self-serving affidavits
or counter-affidavits of the parties. It must be left to be evaluated and
determined by expert body. (6660, 6680-E]

In the instant case, however, the Corporation bad no regularly
employed carpenters. Even assuming that the petitioners' jobs were D
comparable with the counterparts in Government service they could not
enforce the right to equal pay for equal work. [667G, 668A]

State of U.P. v. J.P. Chaurasia, [1989) I SCC 121; Meva Ram
Kanojia v. All India Institute of Medical Sciences & Anr., l1989] 2 SCC
235 and Federation of All India Customs and Central Excise Steno- E
graphers (Recognised) v. Union of India, [1988) 3 SCC 91, referred to.

3. The order issued by the Deputy Commissioner on March 20,
1
1986 in exercise of his powers under the H.P. Financial Rules pres-
\. cribing minimum wages was applicable only to skilled and unskilled
f workers in Class IV employees in Government service. The benefit of F
the rates prescribed under that order cannot be extended to the
petitioners unless the Government makes it applicable to the employees
of the Corporation. I668F-G]

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 548 of
1987. G
(Under Article 32 of the Constitution of India).

M.C. Dhingra for the Petitione.rs.

Kapil Sibal, K.G. Bhagat, A.K. Ganguli, Ms. Kamini Jaiswal, H
664 SUPREME COURT REPORTS I 1989] 3 S.C.R. I
Ms. Aruna Mathur, A. Mariarputham, Harminder Lal and Naresh K.
A
Sharma for the Respondents. I
The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. The petitioners are carpenters
B !st and 2nd grade employed at the Wood Working Centre of the )(
Himachal Pradesh State Handicrafts Corporation (the "Corporation").
They are termed as daily rated employees. In this petition under
Article 32 of the Constitution, they are seeking enforcement of their
fundamental right to have "equal pay for equal work". They demand j
payment in terms paid to their counterparts in regular services. They'{
want the same pay of the regular employees as carpenters or in the
c alternative, the minimum wages prescribed by the Deputy Commis- -+.
sioner for like categories of workmen. They also seek regularisation of
their services with the benefits of pension, gratuity etc.

The Corporation has resisted the petitioners' claim. The case of
D the Corporation is that the unit where the petitioners are working is a
factory registered under the Factories Act. The petitioners are treated ,_
as industrial workmen and are given all benefits due to them under the
various labour legislations. The Government has not fixed the
minimum wages payable to the petitioners engaged in the Corporation ~
or other like industries, but the Corporation has adopted the minimum
E wages payable for similar work in the construction industry. They are
being paid the same wages as are payable to carpenters, painters and
carpenters' helpers engaged in the construction industry. They are ..
given bonus under the Bonus Act and provident fund benefits under
the Employees' Provident Fund Act. It is also stated that the peti- ,
tioners are supplied with the necessary tools for carrying out their _~
F work and also working uniforms like aprons and overalls. I
The Corporation has clearly stated that there are no regular
employees of the petitioners' categories in its establishment_ and,· as
such, the question of payment to t~e.p~titioners, the_-pay admissible to
regular employees does not arise.
G
A little more information about the purpose and object of the X
Corporation would be useful for proper understanding of the case. The
Corporation is a company which has been incorporated under the
Companies Act, 1956. The main object of the Corporation as seen
from the Memorandum of Associatien is to preserve the traditional
H arts and crafts and also to popularise handicrafts and handloom items •
if

HARBANS LAL v. STATE OF H.P. [SHETTY, J.] 665
)"..
in the State of Himachal Pradesh and other parts of the country and A
""' a!Jroad. In order to achieve this primary objective, the Corporation
gives training to artisans, weavers and craftsmen in various traditional
arts and crafts. During the period of training, the trainees are paid a
stipend by the Corporation. Upto 3 lst March, 1987, the Corporation
',(
has imparted training to as many as 1662 persons in different areas like s
' carpet weaving, handloom weaving; painting, metal crafts, wood carv- B
ing, etc. Apart from giving training, the Corporation also ensures
marketing support to the artisans and craftsmen by purchasing their
products at remunerative prices and sell them through the marketing
• network of the Corporation. It is thus a service oriented organisation
\- helping the village artisans and craftsmen to produce and market their
:l
products on remunerative prices. It is said that the village artisans and c
+- craftsmen make different items on a piece rate basis and in some cases,
they execute the work in their own homes.

The financial aspect of the Corporation is stated to be not
encouraging, and indeed, it is disappointing. It has suffered huge loss
and the total losses accumulated hitherto is Rs.69.77 lakhs. Nonethe- D
less, for the purpose of preserving and promoting traditional arts and
crafts, the Corporation has been kept alive. But to avoid or minimise
further loss, it is stated that the Corporation has reduced its overheads
~-
and maintained only the administrative staff in the production centres
at different parts of the State and no permanent craftsmen are
employed. E

With these facts, we may now tum to the principle upon which
the petitioners' case is rested. The principle of "equal pay for equal
work" is not one of the fundamental rights expressly guaranteed by
~ our Constitution. The principle was incorporated only under Article
39(d) of the Constitution as a Directive Principle of State Policy. F
Perhaps, for the first time, this Court in Randhir Singh v. Union of
India, (1982] 1 SCC 618 has innovated that it is a constitutional goal
capable of being achieved through constitutional remedies. There the
Court pointed out that that principle has to be read into Article 14 of
the Constitution which enjoins the State not to deny any person equa-
lity before the law or the equal protection of the law and also to Article G
16 which declares that there should be equality of opportunity for all
~
citizens in matters relating to employment or appointment to any
office under the State. Randhir Singh case was concemed with a
driver-constable in the Delhi Police Force under the Delhi Administ-
ration. He claimed equal salary for equal work at that of other drivers.
The Court found that the petitioner therein performed the same func- H

.!-
666 SUPREME COURT REPORTS [1989] 3 S.C.R.
),
A tions and duties as other drivers in the service of Delhi Administra- ·'ii\

tion. The Court, therefore, directed the Central Government to fix the
pay scale of the petitioner on par with his counterparts doing identical
work under the same employer.
iit
" In the immediate aftermath of the decision in Randhir Singh
B case, there were bumper cases filed in this Court for enforcement of <
the right to "equal pay for equal work", perhaps little realising the
in-built restrictions in that principle. It may not be necessary here to
refer to all those decisions since almost all of them have been con-
sidered and explained in the recent two decisions to which one of us •
was a party (K. Jagannatha Shelly, J.). Reference may be made to: (i)
State of U.P. v. J.P. Chaurasia, (1989] 1SCC121 and (ii) Meva Ram
I
c Kanojia v. All India Institute of Medical Sciences and Anr., (1989] 2 --4,
SCC 235. In Chaurasia case the question arose whether it was permis-
sible to have two different pay scales in the same cadre of Bench
Secretaries of the Allahabad High Court who were for all practical
purposes performing similar duties and having same responsibilities.
D The Court held that the principle of "equal pay for equal work" has no
mechanical application in every case of similar work. Article 14
permits reasonable classification founded on rational basis. It is, there-
fore, not impermissible to provide two different pay scales in the same
cadre on the basis of selection based on merit with due regard to )..,
experience and seniority. It was pointed out that in service, merit or
E experience could be the proper basis for classification to promote effi-
ciency in administration and he or she learns also by experience as
much as by other means. Apart from that, the Court has expressly
observed that the higher pay scale to avoid stagnation or resultant
frustration for lack of promotional avenues may also be allowed.

F Meva Ram Kanojia is the most recent decision which has exhaus-
tively dealt with all the principles bearing on the question of equal pay
·-'
for equal work in the light of all the previous decisions of this Court.
There the petitioner was a "Hearing Therapist" in the All India Insti-
tute of Medical Sciences. He claimed pay scale admissible to "Senior
Speech Pathologist", "Senior Physiotherapist", "Senior Occupational
Therapist", "Audiologist", and "Speech Pathologist''. His case was
based on the allegations that he was discharging same duties and
~
performing similar functions as "Senior Speech Therapist", "Senior
Physiotherapist", "Senior Occupational Therapist", "Audiologist"
and "Speech Pathologist''. But the Court held that the principle of
equal pay for equal work cannot be invoked invariably in every kind of
H service particularly in the area of professional services. It was also held
HARBANS LAL '· STATE OF H.P. [SHETfY, J.] 667

that it is open to the State to classify employees on the basis of qualifi- A
cations, 'duties and responsibilities of the posts concerned. If the clas-
sification has reasonable nexus with the objective sought to be
achieved, efficiency in the administration, the State would be justified
in prescribing different pay scales.

Reference may also be made to the decision in Federation of All B
India Customs and Central Excise Stenographers (Recognised) v. Union
of India, [1988] 3 SCC 91. There the Personal Assistants and Steno-
graphers attached to the Heads of Department in Customs and Central
"'-Excise Department of the Ministry of Finance made a claim for parity
'of wages with the Personal Assistants and Stenographers attached to
Joint Secretaries and Officers above them in Ministry of Finance. The
.f. Court while rejecting the claim expressed the view (at 100):

"But equal pay must depend upon the nature of the
work done, it cannot be judged by the mere volume_ of
work, there may be qualitative difference as regards relia-
bility and responsibility. Functions may be the same but the D
responsibilities make a difference. One.:annot deny thal
often the difference is a matter of degree and that there is
an element of value judgment by those who are charged
with the administration in fbd~g the scales of pay and otha
conditions of service. So long as suchc value judgment is
made bona fide, reasonably on -an intelligible criterion E
which has a rational nexus with the object of diffe'rentia-
tion, such differentiation will not amount to discrimination.
It is important to emphasize that equal pay for equal work,
is a concomitant of Article 14 of the Constitution. But it
follows naturally that equal pay for unequal work will be a
negation of that right." F
Thus the law relating to equal pay for equal work has been
practically hammered out and very little remains for further innova-
tion.

In the light of the aforesaid principles, we may now consider G
-~ whether the equality claims of the petitioners could be allowed. We
have carefully perused the material on record and gave our anxious
consideration to the question urged. From the averments in the plead-
ings of the parties it will be clear that the Corporation has no regularly
employed carpenters. Evidently the petitioners are claiming wages
payable to the carpenters in Government service. We do not think that H
668 SUPREME COURT REPORTS [ 19891 3 S.C.R.

A we could accept their claim. In the first place, even assuming that the )t
petitioners' jobs are comparable with the counterparts in the govern-
ment service, the petitioners cannot enforce the right to "equal pay for
equal work". The discrimination complained of must be within the
same establishment owned by the same management. A comparison
cannot be made with counterparts in other establishments with diffe-
B rent management, or even in establishments in different geographical
locations though owned by the same master. Unless it is shown that
there is a discrimination amongst the same set of employees by the
same master in the same establishment, the principle of "equal pay for
equal work" cannot be enforced. This was also the view expressed in)
Meva Ram Kanojia v. A././.M.S., [1989] 2 SCC 235 at 245. In thf"
c instant case, the petitioners are employed by a company incorporated
under the Companies Act. They cannot claim wages payable to their ~
counterparts in government service.

Secondly, it may be noted that the petitioners are carpenters;
better called as craftsmen. By the general description of their job, one
D cannot come to the conclusion that every carpenter or craftsmen is
equal to the other in the performance of his work. The two jobs by the
mere nomenclature or by the volume of work performed cannot be
rated as equal. It is not just a comparison of physical activity. It
requires the consideration of various dimensions of the job. The ac- },
curacy required by the job and the dexterity it entails may differ from
E job to job. It cannot be evaluated by the mere averments in the self
serving affidavits or counter-affidavits of the parties. It must be left to
be evaluated and determined by expert body. The principal claim of
the petitioners therefore fails and is rejected.

The next contention that the petitioners should be paid at leas.J,,J
F the minimum wages prescribed by the Deputy Commissioner undei
Exhibit P. 2 dated March 20, 1986 cannot also be accepted. Ex. P. 2
was issued by the Deputy Commissioner in the exercise of his powers
under the H.P. Financial Rules. It is applicable only to skilled and
unskilled workers in class IV employees in Government service. It has
not been extended to employees of the Corporation. The petitioners
G have been treated as construction workers and they are being paid the
minimum wages admissible to such workmen. The Court, therefore, ~
cannot direct the Corporation to apply the rates prescribed under Ex.
P. 2 unless the Government makes it applicable to employees of the
Corporation.

H As to the claim for regularisation of services of the petitioners,
HARBANS LAL .-. STATE OF H.P. [SHETTY, J.J 669

we express no opinion, since the factual data is disputed and is insuffi- A
cient. We leave the petitioners to work out their rights elsewhere in
accordance with law applicable to them.

Jn the result, the petition fails and is dismissed. In the cir-
cumstances of the case, we make no order as to costs.
B
P.S.S. Petition dismissed.