A private unaided school had appointed certain instructors in the school. Their duties and responsibilities were same that of the regular , full time teachers. Yet, the remuneration paid to the instructors were very less as compared to the teachers. Now, the instructors complained violation of equal remuneration act. Now, can the instructors file a writ petition against the school ? if yes, how? if no, what is the exact remedy available?
Yes, the instructor can file a writ petition against the private unaided institution under Article 226 in the concerned High Court.
But it should be taken care that the ground on which the instructor files the writ petition rest on violation of Article 14 and not on Equal Remuneration Act, 1976. The ‘act’ is just concerned with equal pay package, salary between men and women. Therefore, in the instant case the proper ground for invoking writ petition should rest on the violation of Article 14 which ensures equality among the same class of people.
Also as to the doubt whether a writ petition can be invoked against private body then the ambit of Article 226 is much wider than Article 32 which says that a writ can only be against government instrumentality. Here, the school is imparting a public function; therefore, the High Court is competent enough to issue a writ of mandamus where any public interest is concerned even though the said body/institution is not an agency/instrumentality of the government.
The issue in the current case is of 'less remuneration paid' with which Equal Remuneration 1976 has dealt with. Chapter II, Section 4 of the act clearly states: "(1) No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or 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 employment for performing the same work or work of a similar nature." The highlighted portion covers the current case and that act is not just restricted to gender discrimination.
Section 10(2)(b) of this act provides with Penalties: "If, after the commencement of this Act, any employer makes any payment or remuneration at unequal rates to men and women worker, for the same work or work of a similar nature, he shall be punishable[with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences".Section 10(2)(c) of teh act specifically deals with any kind of discrimination between men and women workers, hence above cited provision should not be interpreted as restricted to just gender discrimination. the wording of the provision doesnt indicate so.
As per Section 12 of the act, Metropolitan Magistrate or a Judicial Magistrate of the First Class are the appropriate authorities to try the cases.
Yes, a writ petition can indeed be instituted, but not under the Equal Remuneration Act. The writ petition can be filed in the High Court of relevant jurisdiction or the Supreme Court of India.
This answer, which has been divided into two parts, firstly seeks to answer that Equal Remuneration Act provides no ground of remedy in the present case. Secondly, Writ can be issued as fundamental rights of the instructors have been violated.
Referring to the Equal Remuneration Act will be useless in the present instance as the act has been specifically designed to protect the rights of the weaker sex against the stronger one with respect to their wages. Chapter two which talks about equal remunerations has been headed as "PAYMENT OF REMUNERATION AT EQUAL RATES TO MEN AND WOMEN WORKERS AND OTHER MATTERS". Be it Sec. 4, 5, 7 or 10, all refer to the equality of wages between men and women.
On the other hand a writ petition can be filed againnst a private unaided school. Supreme Court in the celebrated case of Praga Tools Corp. v. C.V. Imanual opined that to institute a writ of mandamus it is immaterial that whether the body in question is a private or a governmental one. Writ of mandamus can be issued where the body in question has a positive obligation perform any certain duty. This writ can be invoked as there exists a blatant violation of Article 14. It is unambiguous that the duties and responsibilities of the instructors were same as those of the full time teachers still the remuneration paid to them was VERY LESS as compared to the full time teachers.
Hence the instructors could claim remedy by invoking Article 14 and filing a writ petition in High Court or the Supreme Court. It is preferable that the writ should primarily be filed in the respective High Court.
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