Mackinnon Mackenzie v Audrey D'Costa: Equal Pay and Article 39(d)

Two stenographers sit in the same office. They type the same letters and take the same dictation. One earns Rs. 1,910.45 a month. The other earns Rs. 1,180.25. The only difference is that one is a man and the other is a woman.

Is that legal? The Supreme Court answered in Mackinnon Mackenzie and Co. Ltd v Audrey D'Costa and Another, (1987) 2 SCC 469, decided on 26 March 1987 by Justice E.S. Venkataramiah and Justice M.M. Dutt. The judgment is the leading case on the Equal Remuneration Act, 1976 and a good example of Article 39(d) at work.

The facts

Audrey D'Costa worked as a Confidential Lady Stenographer at Mackinnon Mackenzie and Co. Ltd. Her service ended on 13 June 1977.

The Equal Remuneration Act, 1976 came into force on 8 October 1976. After that date, she received Rs. 1,180.25 per month. Male stenographers with the same length of service received Rs. 1,910.45. The gap was Rs. 730.20 a month.

The company had a 1975 settlement with its workers. That settlement used different fitment criteria for lady stenographers and for the "Clerical and Subordinate Staff" group, which included male stenographers. The company argued that this earlier settlement explained the difference.

The questions before the Court

The Court dealt with four points.

•        Did lady stenographers do the same work as male stenographers?

•        Was the pay difference discrimination on the ground of sex under the Act?

•        Could a settlement made before the Act justify unequal pay?

•        Did sub-section (3) of Section 4, with its proviso, protect the employer?

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The law behind the case

The case rests on the Constitution and on a statute. Article 39(d) is a Directive Principle. It asks the State to direct its policy towards equal pay for equal work for both men and women. Article 14 promises equality before the law. The Equal Remuneration Act, 1976 gives those ideas a working form.

The sections that mattered are set out below.

What the Court held

The Court dismissed the company's petition and agreed with the lower authorities.

The work was the same

The Court looked at what the stenographers actually did, not at what they could theoretically do. It found that lady and male stenographers performed substantially the same duties. Small differences do not defeat an equality claim unless they are of practical importance.

The company said lady stenographers were specially suited to confidential roles. The Court rejected this. It noted that there is no custom or rule that only women can be confidential stenographers. Calling the post "confidential" did not change the core job of a stenographer.

It was sex discrimination

The Court stated that discrimination arises where men and women doing the same or similar work are paid differently. That is exactly what Section 4(1) forbids. The company had violated it.

The 1975 settlement did not save the company

Section 3 says the Act has effect despite any inconsistent settlement. So an older agreement cannot protect unequal pay after the Act commenced.

The Court also pointed to how the discrimination had arisen. It did not come from two separate pay scales that already existed. The settlement had created a common scale, and the problem was in the unfair criteria used to place lady stenographers on it after the Act. That is why the case fell under Section 4(1), and not Section 4(3).

Section 4(3) did not apply

Section 4(3) deals with situations where different rates for the same work existed before the Act. This was not that kind of situation, so the proviso did not help the employer.

Money trouble is not a defence

The company also said it could not afford equal pay. The Court rejected this and held that the applicability of the Act does not depend on the employer's financial ability to pay equal remuneration.

The Court also looked at the International Labour Organisation's Equal Remuneration Convention, 1951, and at decisions from the United Kingdom and the European Economic Community, to show that equal pay enforcement does not need identical circumstances or contemporary employment.

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What the case changed

Before this decision, a company could argue that its own pay settlements should be respected. After it, employers had to fix any pay gap based on sex, even when the gap came from an older agreement.

The case is also useful in showing how a Directive Principle, which is not directly enforceable, becomes real when a statute is passed to carry it out and when courts read that statute with the principle in mind.

How to prepare this case for the exam

Think of the case in four boxes: facts, issue, section and outcome.

•        Facts: lady stenographer, Rs. 1,180.25 against Rs. 1,910.45, Act in force from 8 October 1976.

•        Issue: same work, sex discrimination, effect of the 1975 settlement, Section 4(3).

•        Sections: 2(h), 3, 4(1), 4(3) and Article 39(d).

•        Outcome: petition dismissed, equal pay upheld.

A likely Mains question: "Discuss the scope of the Equal Remuneration Act, 1976 with reference to case law." Open with Article 39(d), describe the Act's main sections and use Mackinnon Mackenzie as the leading authority.

Frequently Asked Questions

Q1. What is the citation of the case?

Mackinnon Mackenzie and Co. Ltd v Audrey D'Costa and Another, (1987) 2 SCC 469, decided on 26 March 1987.

Q2. Which judges decided it?

Justice E.S. Venkataramiah, who wrote the judgment, and Justice M.M. Dutt.

Q3. What was the pay gap?

Rs. 730.20 per month, with the lady stenographer receiving Rs. 1,180.25 and male stenographers Rs. 1,910.45.

Q4. Which Act applied?

The Equal Remuneration Act, 1976, which came into force on 8 October 1976.

Q5. What does "same work or work of a similar nature" mean?

Under Section 2(h), it means work that needs equal skill, effort and responsibility in similar conditions, where the differences are not of practical importance.

Q6. Why did the earlier settlement not help the company?

Section 3 of the Act says it has effect despite any inconsistent agreement, award or contract of service.

Q7. Why was Section 4(3) not applicable?

It applies where different rates for men and women existed before the Act. Here a common scale had been created and the problem lay in the unfair fitment of lady stenographers on it.

Q8. Could the company plead that it could not afford equal pay?

No. The Court held that the Act does not depend on the employer's financial ability.

Q9. How is Article 39(d) linked to the case?

Article 39(d) directs the State towards equal pay for equal work for men and women. The Equal Remuneration Act, 1976 carries out that policy.

Q10. What international material did the Court use?

The ILO Equal Remuneration Convention, 1951, and decisions from the United Kingdom and the European Economic Community.

Conclusion

Mackinnon Mackenzie and Co. Ltd v Audrey D'Costa turned the promise of equal pay into a working rule. The Court looked at the real work done, refused to let old settlements protect unequal pay and would not accept money trouble as a defence.

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