A blow for women's rights

The Delhi High Court upholds the principle of equal pay for equal work, in its judgment in a case filed by women workers of a government-run cooperative store.

AUGUST 13 proved to be an epochal day for 49 women working as packers in Super Bazaar, a government-managed cooperative store. In what was the culmination of a sustained legal battle stretching over 20 years, they reclaimed one of their basic rights that of equal pay for equal work. In a path-breaking judgment, the Delhi High Court upheld a claim filed by the women under the Equal Remuneration Act, 1976. The workers were aggrieved over what they perceived to be discriminatory treatment at the hands of their employer. Their struggle dates back to 1984, when the packers, some of whom had been working since 1978, were regularised along with their male colleagues.

They found that their male counterparts, who were doing the same or similar work, were appointed at higher pay scales. According to the management of the cooperative store, the difference in pay scales was justified, as the women were "packing cleaners", as opposed to "packers", the designation given to the male employees. While the "packing cleaners" cleaned pulses and so on, the "packers" weighed the goods and packed them using electrical appliances. The women workers filed a claim under Section 7 (1) (b) of the Act, which provides for the appointment of an Authority - not below the rank of a Labour Officer - by the government concerned for the purpose of hearing and deciding claims and complaints. Initially, the Authority concerned heard the complaint and gave a decision in favour of the women. It observed that prior to October 1984, the remuneration being given to both men and women was the same for doing the same or similar work, and that the different pay scales had come up only after the workers had been regularised, though the work remained the same. The Authority held that the management of the store could not produce any evidence to show that the nature of the work performed by the men and the women was different. In fact, a clear case of gender bias emerged when a woman worker named Sujjan was erroneously included in the list of men workers and was paid a higher remuneration until the management realised the "error" and reduced her pay. The Authority, while noting that the educational qualifications of the "packers" and "packing cleaners" were different, held that the nature of work was the same, and that the differentiation of pay scales had come about after the workers were regularised. The petitioners, the Authority concluded, had been discriminated only on the grounds of gender.

The management of the cooperative store went on appeal to the Appellate Authority, who was of the rank of a Joint Labour Commissioner. In a reversal of the previous order, the Appellate Authority, in an order dated October 8, 1984, held that the Authority under the Act had misdirected itself by assuming that the petitioners were "packers" and not "packing cleaners". It held that since the difference in designation was not challenged, the petitioners were bound by the same.

Disappointed with this decision, the petitioners approached the Delhi High Court. The single-Judge Bench of Justice Madan B. Lokur, while considering the case, examined its constitutional basis, as well as international law and legal precedent before arriving at a conclusion. In M/s. Mackinnon Mackenzie & Co. Ltd. vs. Audrey D'Costa and Others (1987) 2 SCC 469, where women stenographers had been given a lower scale of pay than male stenographers, the Supreme Court held that the differential pay scales were in violation of the provisions of the Act. While upholding the constitutional basis enshrined in Article 14, which bars discrimination on the grounds of sex, and Article 39 (d), which provides equal pay for equal work, Justice Lokur also referred to the statutory basis of the claim - India is a signatory to the International Labour Organisation Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value. The Judge also referred to the Convention for the Elimination of All Forms of Discrimination Against Women, to which India is a signatory, and specifically to Article 11, which deals with the elimination of discrimination in the field of employment.

Terming the Appellate Authority's emphasis on only one aspect - dissimilarity of designation - as "erroneous", Justice Lokur held that the designation given to an employee is of no consequence at all: "It is the nature of the work which is important and not the designation." Sujjan's instance was highlighted as an example. The Judge concluded that this showed the work she was doing was similar to the work of her male counterparts and that only the designation was the determining factor for fixing the pay scales. "This is obviously not permissible, both under our constitutional schemes as well as under the provisions of the Act," ruled Justice Lokur.

THE workers are relieved at the judgment, but some misgivings remain. Four of the 49 petitioners passed away in the midst of the legal battle. Says Anandi Devi: "I hope we get the compensation soon." She also requested Ashok Aggarwal, the advocate for the petitioners, to ensure that in the event of her death, the compensation amount be passed on to her heirs. Joher, another worker, worked at the cooperative for 18 years, nine of which she worked at a piece-rate wage. "We used to pack the red chilly powder with bare hands and endure severe burning for hours. We never told our families what we did for a living," she said. She started working when her son was a year old. "Now I am a grandmother and I am still fighting," she added.

Fifty-year-old Basanti recalls: "I worked for 20 years in Super Bazaar. My husband fell sick and became unfit for work. My eldest child was eight years old and I was around 24 years." Gyanwati's situation was equally tragic. Her husband suffered a paralytic stroke and she found herself the sole breadwinner of the family. "My son could not clear his tenth class exams as I could not afford to pay his fees and buy his school uniform," she says emotionally. Desperate for work, she joined the cooperative and then found herself fighting discrimination along with other women workers. Subhash Shankar Dube, general secretary of the Super Bazaar Employees' Union, also a former employee of the cooperative, added that the women were exploited in every conceivable manner. "They used to hide behind the huge piles of stocked foodgrains and eat their food. Today, it is a different story. They come to the union office confidently," says Dube.

The women know that there is still a long struggle ahead. Ashok Aggarwal says that there are very few precedents of claims being filed under the Equal Remuneration Act. He said that governments were often seen to refer to the Act at international forums in order to portray that the rights of women workers were being protected in every manner. "This form of discrimination, in varying pay scales for the same work, is very prevalent. In fact, it is worsening. With more and more women entering the unorganised workforce, instances of discrimination are also going up," he said.

Aggarwal, who is a leading campaigner of the rights of the child, revealed that even within child labour, which had increased tremendously over the last decade, the preference was for girl children so that employers could get away with paying them less. "Apart from the basic problem of unawareness of their rights, the delays by the judicial system in dealing with such cases also compound the problem several times over," he said. Sensitive lawyers and unions could work in tandem in such situations, says Aggarwal.

In an era where the ranks of the unorganised sector is growing and where more and more women seem to be preferred because of their inability to negotiate better wages, there is an urgent need to restore the language of rights for those who need it the most.