MACKINNON MACKENZIE AND COMPANY LIMITED Vs. AUDREY DCOSTA

JUDGEMENT

(1.) In this Special Leave Petition filed under Art. 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 S. 4 of the Equal Remuneration Act, 1976 (No. 25 of 1976) (hereinafter referred to as 'the Act') arises for consideration.

(2.) The petitioner is a company carrying on the business of rendering supporting services of water transport, like operation and maintenance 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-sec. (3) of S. 1 of the Act. Respondent No. 1 Audrey D'Costa was one of the employees working under the petitioner till June 13, 1977 on which date her services were terminated. 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-sec. (1) of S. 7 of the Act complaining that during the period of her employment, after the Act came into force, she was being paid remuneration at the rates less 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 remuneration 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-sec. (3) of S. 1 of the Act; that there was no difference in the scales or grades of pay between 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 Executives of the petitioner company were not doing the same or similar work which the male Stenographers were discharging; and that there. was no discrimination in salary on account of sex. The petitioner contended that S. 4 of the Act had not been violated by it.

(3.) After hearing both the parties, the Authority which heard the complaint of the respondent No. 1, found that the male Stenographers and the lady Stenographers were doing the same kind of 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 S. 4 the Act as no discrimination on the ground of sex had been made. It accordingly rejected the complaint of the respondent No. 1 by its order dated March 30, 1982. Aggrieved by the order of the Authority appointed under sub-sec. (1) of S. 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-sec. (6) of S. 7 of the Act. The Appellate Authority came to the conclusion that there was clear discrimination between the male Stenographers and the female Stenographers working in the establishment of the petitioner and the petitioner had committed the breach of the provisions of the Act. Accordingly, the appeal was allowed by the Appellate Authority on May 31, 1982. It directed the petitioner to make payment of Rs. 7,196.67 paise which was the difference between the basic salary of 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 respondent No. 1 and the dearness allowance paid (to) her male counter-parts during the said period. The petitioner was also directed to contribute 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 Art. 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 no doubt that the work performed by the female Stenographers and work performed by the male Stenographers were identical 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 number of years and the respondent No. 1 was entitled to the difference between the pay and allowances which had been paid to a male Stenographer who had put in service for the same number of 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 respondent No. 1 was entitled to relief the case was remanded to the Appellate Authority for computing the amount due to the respondent No. 1 afresh. The order of the Appellate Authority was affirmed in other respects. Aggrieved by the decision of the learned single Judge, the petitioner filed an appeal in Appeal No. 1042 of 1986 before the Division Bench of the High Court which came to be dismissed on November 24, 1986. Aggrieved by the decision of the Division Bench, the petitioner has filed this petition under Art. 136 of the Constitution of India.