LexThe EQUAL REMUNERATION ACT, 1976
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Central Advisory Committee on Equal Remuneration Rules, 1991
INDEX
THE EQUAL REMUNERATION ACT, 1976
Section Description
CHAPTER I : PRELIMINARY
Introduction
1. Short title, extent and commencement
2. Definitions
3. Act to have over riding effect
CHAPTER II: PAYMENT OF REMUNERATION AT
EQUAL RATES TO MEN AND WOMEN
WORKERS AND OTHER MATTERS
4. Duty of employer to pay equal remuneration to men and
women workers for same work or work of a similar nature
5. No discrimination to be made while recruiting me n and
women workers
6. Advisory Committee
7. Power of appropriate Government to appoint aut horities for
hearing and deciding claims and complaints
CHAPTER III : MISCELLANEOUS
8. Duty of employers to maintain registers
9. Inspectors
10. Penalties
11. Offences by companies
12. Cognizance and trial of offences
13. Power to make rules
14. Power of Central Government to give direction s
15. Act not to apply in certain special cases
16. Power to make declaration
17. Power to remove difficulties
18. Repeal and saving
Central Advisory Committee on Equal Remuneration Rules, 1991
THE EQUAL REMUNERATION ACT, 1976
INTRODUCTION
In Part IV relating to the Directive Principles of State Policy article 39 of the
Constitution envisages that the State shall direct its policy, among other things,
towards securing that there is equal pay for equal work for both men and women.
In order to give effect to this provision, in the y ear which was being celebrated as
the International Women’s Year, President of India promulgated the Equal
Remuneration Ordinance, 1975 on 26th September, 197 5 to provide for the
payment of equal remuneration to men and women work ers and for the
prevention of discrimination, on the ground of sex, against women in the matter
of employment. To replace the said Ordinance of 197 5 the Equal Remuneration
Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Article 39 of the Constitution envisages that the State shall direct its policy
among other things, towards securing that there is equal pay for equal work for
both men and women. To give effect to this constitutional provision, the President
promulgated on the 26th September, 1975, the Equal Remuneration Ordinance,
1975 so that the provisions of article 39 of the Co nstitution may be implemented
in the year which is being celebrated as the Intern ational Women’s Year. The
Ordinance provides for payment of equal remuneratio n to men and women
workers for the same work or work of a similar natu re and for the prevention of
discrimination on grounds of sex.
2. The Ordinance also ensures that there will be n o discrimination against
recruitment of women and provides for the setting u p of Advisory Committees
to promote employment opportunities for women.
3. This Bill seeks to replace the Ordinance.
ACT 25 OF 1976
The Equal Remuneration Bill was passed by both the Houses of Parliament
and it received the assent of the President on llth February, 1976. It came on the
Statute Book as THE EQUAL REMUNERATION ACT, 1976 (25 of 1976).
AMENDING ACT
Central Advisory Committee on Equal Remuneration Rules, 1991
The Equal Remuneration (Amendment) Act, 1987 (49 o f 1987).
Central Advisory Committee on Equal Remuneration Rules, 1991
THE EQUAL REMUNERATION ACT, 1976
(25 of 1976)
[11th February, 1976]
An Act to provide for the payment of equal remunera tion to men and women
workers and for the prevention of discrimination, o n the ground of sex, against
women in the matter of employment and for matters c onnected therewith or
incidental thereto be it enacted by Parliament in t he Twenty-seventh year of the
Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement. —
(1) This Act may be called the Equal Remuneration Act, 1976.
(2) It extends to the whole of India.
(3) It shall come into force on such date*, not be ing later than three years
from the passing of this Act, as the Central Govern ment may, by
notification, appoint and different dates may be ap pointed for different
establishments or employments.
2. Definitions.— In this Act, unless the context otherwise requires.—
(a) “appropriate Government” means.—
(i) in relation to any employment carried on by or under the authority of
the Central Government or a railway administration, or in relation to
a banking company, a mine, oilfield or major port o r any corporation
established by or under a Central Act, the Central Government, and
(ii) in relation to any other employment, the State Government;
(b) “commencement of this Act” means, in relation to an establishment or
employment, the date on which this Act comes into force in respect of that
establishment or employment;
(c) “employer” has the meaning assigned to it in clause (f) of se ction 2 of
the Payment of Gratuity Act, 1972 (39 of 1972);
(d) “man” and “woman” means male and female human beings,
respectively, of any age;
(e) “notification” means a notification published in the Official Gazette;
(f) “prescribed ” means prescribed by rules made under this Act;
* 8-3-1976, vide S.O. 175(E), dated 6th March, 1976 .
Central Advisory Committee on Equal Remuneration Rules, 1991
(g) “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 s uch employment, if
the terms of the contract of employment, express or implied, were fulfilled;
(h) “same work or work of a similar nature” means work in respect of
which the skill, effort and responsibility required are the same, when
performed under similar working conditions, by a ma n or a woman and
the differences, if any, between the skill, effort and responsibility required
of a man and those required of a woman are not of p ractical importance
in relation to the terms and conditions of employment;
(i) “worker” means a worker in any establishment or employment in respect
of which this Act has come into force;
(j) words and expressions used in this Act and not defined but defined in the
Industrial Disputes Act, 1947 (14 of 1947), shall h ave the meanings
respectively assigned to them in that Act.
(i) The words “under the authority of” in the def inition of “appropriate
Government” in section 2(a) means pursuant to the a uthority. If the firm and
its partners were independent contractors, their em ployment cannot be said
to be carried on by or under the authority of Centr al Government and
sanction of Central Government would be invalid and incompetent; K.E.
Koshy v. The State, (1987) 71 FJR 548 (Kant).
(ii) In section 2(h) the expression “same work or w ork of similar nature” lays
stress upon the similarity of skill, effort and res ponsibility when performed
under similar working conditions. The equality of w ork may vary from
institution to institution. It is a matter of proof and not of assumption; State of
Madhya Pradesh v. Pramod Bhartiya, 1992 (65) FLR 1991 (SC).
(iii) The question of equal work depends on various factors like responsibility,
skill, effort and condition of work; Ashok Kumar Ga rg v. State of Rajasthan,
(1994) 3 SCC 357:1994 SC (L & S) 768: (1994) 27 ATC 200.
(iv) A broad approach should be taken in deciding w hether the work is the
same or of a similar nature. In doing so the duties actually and generally
performed by men and women and not those theoretica lly possible, should be
looked at; Mackinnon Mackenzie and Co. v, Audrey D’ Costa, (1987) 2 SCC 469.
Case Law
Central Advisory Committee on Equal Remuneration Rules, 1991
3. Act to have over riding effect.— The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith con tained in any other law or
in the terms of any award, agreement or contract of service, whether made
before or after the commencement of this Act, or in any instrument having
effect under any law for the time being in force.
A settlement arrived at between the management and the employees cannot be
a valid ground for effecting discrimination in paym ent of remuneration between
male and female employees performing the same work or work of a similar
nature; Mackinnon Mackenzie and Co. v. Audrey D’ Costa, (1987) 2 SCC 469.
CHAPTER II
PAYMENT OF REMUNERATION AT EQUAL RATES TO MEN AND WOMEN
WORKERS AND OTHER MATTERS
4. Duty of employer to pay equal remuneration to m en and women
workers for same work or work of a similar nature.—
(1) No employer shall pay to any worker, employed b y him in an establishment or
employment, remuneration, whether payable in cash o r in kind, at rates less
favourable than those at which remuneration is paid by him to the workers of
the opposite sex in such establishment or employmen t for performing the
same work or work of a similar nature.
(2) No employer shall, for the purpose of complyin g with the provisions of sub-
section (1), reduce the rate of remuneration of any worker.
(3) Where, in an establishment or employment, the r ates of remuneration
payable before the commencement of this Act for men and women workers
for the same work or work of a similar nature are d ifferent only on the ground
of sex, then the higher (in cases where there are o nly 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:
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 bef ore the commencement of
this Act.
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Central Advisory Committee on Equal Remuneration Rules, 1991
(i) The principle of equal pay for equal work is not applicable in professional
services; C. Girijambal v. Government of Andhra Pradesh, (1981) 2 SCC 155.
(ii) An employer cannot claim exemption on the grou nd of financial incapability
from the Equal Remuneration Act, 1976; Mackinnan Ma ckenzie and Co. v.
Audrey D’ Costa, (1987) 2 SCC 469.
(iii) The proviso to sub-section (3) of section 4 o perates only where sub-section
(3) is applicable and not elsewhere; Mackinnan Mack enzie and Co, v. Audrey
D’ Costa, (1987) 2 SCC 469.
(iv) The benefit conferred on females under the Act is not absolute and
unconditional. Section 16 clearly authorises restri ctions regarding remuneration
to be paid by the employer if a declaration under i t is made by the appropriate
Government; Air India v, Nergesh Meerza, (1981) 4 SCC 335.
5. No discrimination to be made while recruiting men and women
workers.— On and from the commencement of this Act, no employ er shall
while making recruitment for the same work or work of a similar nature,
1[or in
any condition of service subsequent to recruitment such as promotions,
training or transfer,] make any discrimination agai nst women except where
the employment of women in such work is prohibited or restricted by or under
any law for the time being in force:
Provided that the provisions of this section shall not affect any priority or
reservation for Scheduled Castes or Scheduled Tribe s, ex-servicemen,
retrenched employees or any other class or category of persons in the matter
of recruitment to the posts in an establishment or employment.
6. Advisory Committee.—
(1) For the purpose of providing increasing employm ent opportunities for
women, the appropriate Government shall constitute one or more
Advisory Committees to advise it with regard to the extent to which
women may be employed in such establishments or emp loyments as the
Central Government may, by notification, specify in this behalf.
1 Ins. by Act 49 of 19S7, sec. 2 (w.e.f. 16-12-1987).
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Central Advisory Committee on Equal Remuneration Rules, 1991
(2) Every Advisory Committee shall consist of not less than ten persons, to be
nominated by the appropriate Government, of which o ne-half shall be
women.
(3) In tendering its advice, the Advisory Committee shall have regard to the
number of women employed in the concerned establish ment or
employment, the nature of work, hoirs of work, suit ability of women for
employment, as the case may be, the need for provid ing increasing
employment opportunities for women, including part- time employment,
and such other relevant factors as the Committee may think fit.
(4) The Advisory Committee shall regulate its own procedure.
(5) The appropriate Government may, after consideri ng the advice tendered
to it by the Advisory Committee and after giving to the persons concerned
in the establishment or employment an opportunity t o make
representations, issue such directions in respect o f employment of
women workers, as the appropriate Government may think fit.
7. Power of appropriate Government to appoint autho rities for hearing and
deciding claims and complaints.—
(1) The appropriate Government may, by notification , appoint such officers,
not below the rank of a Labour Officer, as it think s fit to be the authorities
for the purpose of hearing and deciding—
(a) Complaints with regard to the contravention of any provision of this
Act;
(b) claims arising out of non-payment of wages at e qual rates to men and
women workers for the same work or work of a simila r nature, and
may, by the same or subsequent notification, define the local limits
within which each such authority shall exercise its jurisdiction.
(2) Every complaint or claim referred to in sub-sec tion (1) shall be made in
such manner as may be prescribed.
(3) If any question arises as to whether two or mor e works are of the same
nature or of a similar nature, it shall be decided by the authority appointed
under sub-section (1).
(4) Where a complaint or claim is made to the autho rity appointed under sub-
section (1), it may, after giving the applicant and the employer an
opportunity of being heard, and after such inquiry as it may consider
necessary, direct,—
Central Advisory Committee on Equal Remuneration Rules, 1991
(i) in the case of a claim arising out of non-payme nt of wages at equal
rates to men and women workers for the same work or work of a
similar nature, that payment he made to the worker of the amount by
which the wages payable to him exceed the amount actually paid;
(ii) in the case of complaint, that adequate steps be taken by the
employer so as to ensure that there is no contraven tion of any
provision of this Act.
(5) Every authority appointed under sub-section (1) shall have all the powers
of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for
the purpose of taking evidence and of enforcing the attendance of
witnesses and compelling the production of document s, and every such
authority shall be deemed to be a Civil Court for a ll the purposes of
section 195 and Chapter XXVI of the Code of Crimina l Procedure, 1973
(2 of 1974).
(6) Any employer or worker aggrieved by any order m ade by an authority
appointed under sub-section (1), on a complaint or claim may, within thirty
days from the date of the order, prefer an appeal t o such authority as the
appropriate Government may, by notification, specif y in this behalf, and
that authority may, after hearing the appeal, confi rm, modify or reverse
the order appealed against and no further appeal sh all lie against the
order made by such authority.
(7) The authority referred to in sub-section (6) ma y, if it is satisfied that the
appellant was prevented by sufficient cause from pr eferring the appeal
within the period specified in sub-section (6), all ow the appeal to be
preferred within a further period of thirty days but not thereafter.
(8) The provisions of sub-section (1) of section 33 C of the Industrial Disputes
Act, 1947 (14 of 1947), shall apply for the recovery of monies due from an
employer arising out of the decision of an authorit y appointed under this
section.
CHAPTER III
MISCELLANEOUS
8. Duty of employers to maintain registers.— On and from the
commencement of this Act, every employer shall main tain such registers and
other documents in relation to the workers employed by him as may be
prescribed.
Central Advisory Committee on Equal Remuneration Rules, 1991
9. Inspectors.—
(1) The appropriate Government may, by notification , appoint such persons
as it may think fit to be Inspectors for the purpos e of making an
investigation as to whether the provisions of this Act, or the rules made
thereunder, are being complied with by employers, a nd may define the
local limits within which an Inspector may make such investigation.
(2) Every Inspector shall be deemed to be a public servant within the
meaning of section 21 of the Indian Penal Code (45 of 1860).
(3) An Inspector may, at any place within the local limits of his jurisdiction,—
(a) enter, at any reasonable time, with such assist ance as he thinks fit,
any building, factory, premises or vessel;
(b) require any employer to produce any register, m uster-roll or other
documents relating to the employment of workers, an d examine such
documents;
(c) take, on the spot or otherwise, the evidence of any person for the
purpose of ascertaining whether the provisions of t his Act are being,
or have been, complied with;
(d) examine the employer, his agent or servant or a ny other person
found in charge of the establishment or any premise s connected
therewith or any person whom the Inspector has reas onable cause to
believe to be, or to have been a worker in the establishment;
(e) make copies, or take extracts from, any registe r or other document
maintained in relation to the establishment under this Act.
(4) Any person required by an Inspector to produce any register or other
document or to give any information shall comply with such requisition.
10. Penalties.—
(1) If after the commencement of this Act, any empl oyer, being required by or
under the Act, so to do—
(a) omits or fails to maintain any register or othe r document in relation to
workers employed by him, or
(b) omits or fails to produce any register, muster- roll or other document
relating to the employment of workers, or
(c) omits or refuses to give any evidence or preven ts his agent, servant,
or any other person in charge of the establishment, or any worker,
from giving evidence, or
Central Advisory Committee on Equal Remuneration Rules, 1991
(d) omits or refuses to give any information, he sh all be punishable 1[with
simple imprisonment for a term which may extend to one month or
with fine which may extend to ten thousand rupees or with both.]
(2) If, after the commencement of this Act, any employer—
(a) makes any recruitment in contravention of the provisions of this Act,
or
(b) makes any payment of remuneration at unequal ra tes to men and
women workers, for the same work or work of a similar nature, or
(c) makes any discrimination between men and women workers in
contravention of the provisions of this Act, or
(d) omits or fails to carry out any direction made by the appropriate
Government under sub-section (5) of section 6, he s hall be
punishable 2[with fine which shall not be less than ten thousan d
rupees but which may extend to twenty thousand rupe es or with
imprisonment for a term which shall be not less tha n three months but
which may extend to one year or with both for the f irst offence, and
with imprisonment which may extend to two years for the second and
subsequent offences.]
(3) If any person being required so to do, omits or refuses to produce to an
Inspector any register or other document or to give any information, he
shall be punishable with fine which may extend to five hundred rupees.
11. Offences by companies.—
(1) Where an offence under this Act has been commit ted by a company,
every person who, at the time the offence was commi tted, was in charge
of, and was responsible to, the company for the con duct of the business
of the company, as well as the company, shall be de emed to be guilty of
the offence and shall be liable to be proceeded aga inst and punished
accordingly:
Provided that nothing contained in this sub-section shall render any such
person liable to any punishment, if he proves that the offence was committed
1 Subs, by Act 49 of 1987, sec. 3, for “with fine whic h may extend to one thousand rupees”
(w.e.f. 16-12-1987).
2 Subs, by Act 49 of 1987, sec. 3, for “with fine which may extend to five thousand rupees”
(w.e.f. 16-12-1987).
Central Advisory Committee on Equal Remuneration Rules, 1991
without his knowledge or that he had exercised all due diligence to prevent
the commission of such offence.
(2) Notwithstanding anything contained in sub-secti on (1), where any offence
under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or conn ivance of, or is
attributable to, any neglect on the part of any dir ector, manager, secretary
or other officer of the company, such director, man ager, secretary or,
other officer shall be deemed to be guilty of that offence and shall be
liable to be proceeded against and punished accordingly.
Explanation.— For the purposes of this section,—
(a) “company” means any body corporate and includes a firm or other
association of individuals; and
(b) “director”, in relation to a firm, means a part ner in the firm.
1 [12. Cognizance and trial of offences.—
(1) No court inferior to that of a Metropolitan Mag istrate or a Judicial
Magistrate of the first class shall try any offence punishable under this
Act.
(2) No court shall take cognizance of an offence pu nishable under this Act
except upon—
(a) its own knowledge or upon a complaint made by t he appropriate
Government or an officer authorised by it in this behalf, or
(b) a complaint made by the person aggrieved by the offence or by any
recognised welfare institution or organisation.
Explanation.— for the purposes of this sub-section “recognised we lfare
institution or organisation” means a social welfare institution or organisation
recognised in this behalf by the Central or State Government.]
13. Power to make rules.—
(1) The Central Government may, by notification, ma ke rules for carrying out
the provisions of this Act.
(2) In particular, and without prejudice to the gen erality of the foregoing
power, such rules may provide for all or any of the following matters,
namely:—
1 Subs, by Act 49 of 1987, see. 4, for section 12 (w.e. f. 16-12-1987).
Central Advisory Committee on Equal Remuneration Rules, 1991
(a) the manner in which complaint or claim referred to in sub-section (1)
of section 7 shall be made;
(b) registers and other documents which an employer is required under
section 8 to maintain in relation to the workers employed by him;
(c) any other matter which is required to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be laid,
as soon as may be after it is made, before each Hou se of Parliament,
while it is in session, for a total period of thirt y days which may be
comprised in one session or in two or more successi ve sessions, and if,
before the expiry of the session immediately follow ing the session or the
successive sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, t hat any such
modification or annulment shall be without prejudic e to the validity of
anything previously done under that rule.
14. Power of Central Government to give directions. — The Central
Government may give directions to a State Governmen t as to the carrying
into execution of this Act in the State.
1[15. Act not to apply in certain special cases.— Nothing in this Act shall
apply—
(a) to cases affecting the terms and conditions of a woman’s employment in
complying with the requirements of any law giving s pecial treatment to
women, or
(b) to any special treatment accorded to women in connection with—
(i) the birth or expected birth of a child, or
(ii) the terms and conditions relating to retiremen t, marriage or death or to
any provision made in connection with the retiremen t, marriage or
death.]
16. Power to make declaration.— Where the appropriate Government is, on a
consideration of all the circumstances of the case, satisfied that the
1 Subs, by Act 49 of 1987, sec. 5, for section 15 (w.e.f . 16-12-1987).
Central Advisory Committee on Equal Remuneration Rules, 1991
differences in regard to the remuneration, or a par ticular species of
remuneration, of men and women workers in any estab lishment or
employment is based on a factor other than sex, it may, by notification, make
a declaration to that effect, and any act of the em ployer attributable to such a
difference shall not be deemed to be a contraventio n of any provision of this
Act.
17. Power to remove difficulties.— If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by notification, make any
order, not inconsistent with the provisions of this Act, which appears to it to
be necessary for the purpose of removing the difficulty:
Provided that every such order shall, as soon as ma y be after it is made, be
laid before each House of Parliament.
18. Repeal and saving.—
(1) The Equal Remuneration Ordinance, 1975 is hereby repealed.
(2) Notwithstanding such repeal, anything done or a ny action taken under the
Ordinance so repealed (including any notification, nomination,
appointment, order or direction made thereunder) sh all be deemed to
have been done or taken under the corresponding pro visions of this Act
as if this Act were in force when such thing was done or action was taken.